United States v. Osadzinski
| Decision Date | 29 July 2021 |
| Docket Number | 19 CR 869 |
| Parties | UNITED STATES OF AMERICA v. THOMAS OSADZINSKI |
| Court | U.S. District Court — Northern District of Illinois |
On November 18, 2019, defendant Thomas Osadzinski was arrested pursuant to a criminal complaint charging him with attempting to provide material support and resources to a Foreign Terrorist Organization (“FTO”) in violation of 18 U.S.C. § 2339B. On December 12, 2019, the grand jury returned a superseding indictment, charging defendant with one count of providing material support to the Islamic State of Iraq and ash-Sham (“ISIS”) in violation of 18 U.S.C. § 2339B(a)(1). Defendant has filed the following motions: (1) to dismiss the indictment for vagueness and unconstitutionality (Doc. 65); (2) to suppress evidence obtained as a result of 18 U.S.C. § 2703(d) (Doc. 67); (3) for notice and production of discovery relating to surveillance (Doc. 69); (4) objecting to secret ex parte Classified Information Procedures Act (“CIPA”) litigation and for disclosure of materials to cleared defense counsel (Doc. 70); (5) for a bill of particulars (Doc. 71); (6) for disclosure of favorable evidence (Doc. 72); (7) for disclosure of expert material 60 days before trial (Doc. 73); and (8) for disclosure of Rule 404(b) material (Doc. 74). For the reasons stated below, defendant's motions are denied with certain minor exceptions.
“When considering a motion to dismiss an indictment, a court assumes all facts in the indictment are true and must ‘view all facts in the light most favorable to the government.'” United States v. Jones & Schimenti, 383 F.Supp.3d 810, 817 (N.D. Ill. Apr. 2019) (quoting United States v. Yashar, 166 F.3d 873, 880 (7th Cir. 1999)). Defendant argues that the indictment should be dismissed as void for vagueness because it is unclear what “services” defendant provided, and because the alleged conduct is protected speech under the First Amendment. The court will address each argument in turn.
“The void-for-vagueness doctrine requires that a criminal statute define an offense with sufficient clarity that an ordinary person has fair notice of what conduct is prohibited so as to avoid arbitrary and discriminatory enforcement.” United States v. Cook, 914 F.3d 545, 549 (7th Cir. 2019). “‘What renders a statute vague is not the possibility that it will sometimes be difficult to determine whether the incriminating fact it establishes has been proved; but rather the indeterminacy of precisely what that fact is.'” Id at 549-50 (quoting United States v. Williams, 553 U.S. 285, 306 (2008)). The court considers “whether a statute is vague as applied to the particular facts at issue, ” rather than in the abstract. Holder v. Humanitarian Law Project, 561 U.S. 1, 18-19 (2010).
Defendant argues that the term “services” as applied to him is void for vagueness because the term “would not put a reasonable person on notice” that the charged conduct constituted provision of material support to ISIS. The crux of defendant's argument is that the service he performed is not in and of itself illegal, and therefore the term “service” as applied to his conduct is “ambiguous, ” “open-ended” and could lead to “arbitrary and discriminatory enforcement.” The court is unconvinced.
As applied to the defendant, the material support statute is not unconstitutionally vague. The term “service, ” as set forth in the statute, is not ambiguous, and “a person of ordinary intelligence would understand the term ‘service' to cover advocacy performed in coordination with, or at the direction of, a foreign terrorist organization.” Humanitarian Law Project, 561 U.S. at 21. To violate § 2339B by providing a “service, ” the government must prove that defendant engaged in a “concerted activity, not independent advocacy, ” that was done in coordination with, or at the direction of, an FTO, or at least an attempt to do so. Id at 23-24. As alleged in the complaint and the indictment, defendant's conduct of creating a computer script to prevent ISIS videos from being deleted, and translating ISIS videos into English for pro-ISIS media organizations, clearly constituted “concerted activity.” Thus, the term “service” is not vague as applied to defendant.
Defendant's vagueness argument fails for several additional reasons.[1] First, defendant was aware that ISIS was a designated FTO and that providing support to ISIS was illegal. Indeed, as documented in the complaint and the government's response brief, defendant repeatedly chronicled his efforts to avoid detection from the FBI, including swallowing his password for the computer that contained the relevant computer script. Also, during the execution of a search warrant at defendant's apartment, the FBI found a copy of the criminal complaint from Untied States v. Schimenti & Jones (17 CR 236, N.D. Ill.), which detailed that ISIS is an FTO and identified the elements of a § 2339B offense. Defendant's knowledge of ISIS's designation, as well as his knowledge of the statute, undercuts defendant's argument that he would not understand that any services provided to ISIS were illegal.
Second, the indictment alleges that defendant intended to perform a valuable service for ISIS. Defendant believed his computer skills would provide a service to ISIS by helping them preserve videos that defendant knew were used to recruit members and to intimidate civilians.[2] Defendant was aware that social media platforms frequently remove ISIS videos and believed that law enforcement investigated individuals who downloaded ISIS content. More importantly, defendant specifically expressed a desire to preserve ISIS videos through his computer script; not for his own viewing pleasure, but for “brothers” who support ISIS. Defendant attempted to commit what he called “media jihad, ” which he believed was the “highest form of jihad.” These facts demonstrate that defendant intended to act as a part of the organization and for the organization's benefit, not merely as an independent advocate.
Finally, defendant argues that the government has not alleged that defendant performed services at the direction of, or in coordination with, ISIS. As a threshold matter, defendant has been charged with “attempting to provide material support and resources to a Foreign Terrorist Organization.” Accordingly, the government is not required to allege or establish actual connection or direction with ISIS, so long as the government presents evidence that defendant attempted to do so. The government has certainly alleged as much. Even if the government had not charged attempt, “[u]nder the plain language of the statute, Defendant need not interact with an actual or purported member of the FTO to be charged with violating § 2339B.”[3] Jones & Schimenti, 383 F.Supp.3d at 817. Here, defendant informed an OCE that he was attempting to help ISIS by creating the computer script, defendant interacted with ISIS media organizations and translated videos for those organizations, and defendant pledged loyalty to the leader of ISIS in a video to OCE4. The government has clearly alleged that defendant performed services at the direction of, and in coordination with, ISIS.
For these reasons, the court declines to dismiss the indictment as vague.
Defendant makes two arguments under the First Amendment: (1) his conduct-namely, writing a computer script-is protected, political speech; and (2) downloading and viewing videos of a violent nature is protected.
Regarding the first argument, the Supreme Court has distinguished between independent advocacy (protected speech) and “advocacy performed in coordination with, or at the direction of, a foreign terrorist organization” (unprotected speech). Humanitarian Law Project, 561 U.S. at 26. Indeed, the Supreme Court has clarified that when material support takes the form of speech, “the statute is carefully drawn to cover only a narrow category of speech, to, under the direction of, or in coordination with foreign groups that the speaker knows to be a terrorist organization.” Id. The Seventh Circuit has further clarified the issue, stating that, Boim v. Quranic Literacy Institute and Holy Land Foundation for Relief and Development, 291 F.3d 1000, 1026 (7th Cir. 2002); see also, U.S. v. Warsame, 537 F.Supp.2d 1005, 1014 (D. Minn. 2008) ().
Defendant argues that his conduct-such as praising ISIS and sharing ISIS propaganda videos-is protected political speech. Given the Seventh Circuit's spectrum of political speech on the one hand, and providing weapons to terrorists on the other defendant's argument is not surprising. However, defendant diminishes his most concerning and relevant conduct. Defendant was not merely praising ISIS on his own social media accounts or “vigorously advocating the goals and philosophies of [ISIS], ” Boim, 291 F.3d at 1026, but he was also providing translation services and building a computer script that prevented ISIS videos from being deleted-a service he believed was “the highest...
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